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Himachal Pradesh High Court · body

2015 DIGILAW 1843 (HP)

State of H. P. v. Pardeep Singh

2015-12-10

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT: Per Sureshwar Thakur, Judge This appeal is directed against the judgment rendered on 30.8.2008 by the learned Special Judge, Mandi, in Sessions trial No. 9 of 2007, whereby the latter Court acquitted the accused/respondent herein (hereinafter referred to as “accused”) for his having committed an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”). 2. Brief facts of the case are that on 1.9.2005 HC Harinder Singh, (PW-7) along with Constable Hans Raj, PW-1 was on patrol duty on motorcycle. At about 5.30 AM when they reached at Bus stand, Mandi HRTC bus No.HP-68-0482, enroute from Delhi to Manali stopped there and a person alighted from the bus from the rear door, who was carrying a poly bag in his hand and on seeing the police officials he started moving back. They chased the said person and nabbed him. On suspicion his poly bag was searched and jacket Ext.P.10, mobile phone Ext.P.11 and blue coloured packet Ext.P.2 were recovered from the poly bag. When the packet Ext.P.2 was searched, it was found containing poly packets Ext.P.3 and P.4. The poly packets were wrapped with tape and on theirs being opened, brownish coloured smack round in shape of different sizes was recovered, which was weighing about 15-20 grams. The said smack was taken into possession along with other articles vide recovery memo Ext.PA, which was signed by the Investigating Officer, as well as Constable Hans Raj and accused. On enquiry, the accused disclosed his name as Pradeep Kumar. Thereafter, Ruka Ext.PB was prepared and sent through Constable Hans Raj for registration of the case to Police Station, Sadar, Mandi. On the basis of which FIR Ext.PO was registered. The site plan Ext.PP was prepared. As there was no arrangement for weighing the contraband, the accused along with contraband was brought in the shop of Suresh Kumar, Jeweller, Moti Bazar, Mandi. Thereafter, the contraband was weighed and found to be 20 grams. Two samples of 5 grams each were taken out from the contraband and sealed with seal having impression T. Remaining contraband Ext.P.5 was also sealed with seal impression T in parcel Ext.P.1 along with two poly packets Exts.P.3 and P.4, which were put in blue bag Ext.P.2. Signatures of accused along with witnesses Hans Raj and Pappi Kumar on both the sample sealed parcels were taken. Signatures of accused along with witnesses Hans Raj and Pappi Kumar on both the sample sealed parcels were taken. The accused was informed about his arrest vide Memo Ext. PQ and his personal search was also carried out vide memo Ext. PR. The statements of the witnesses were recorded as per their version. Two sealed samples along with specimen seals and NCB form along with other documents were sent to CTL, Kandaghat vide RC No.158/2005 through Constable Param Dev for chemical examination. The report of the Chemical Examiner, Kandaghat Ext. PK was received, in which the traces of Heroin have been detected in the contraband. After completion of the investigation, challan, under Section 173 of the Cr.P.C. was prepared and filed in the Court. 3. The trial Court charged the accused for his having committed an offence punishable under Section 21 of the Act to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined as many as 8 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded, in which he pleaded innocence. On closure of proceedings under Section 313 Cr.P.C the accused was given an opportunity to adduce evidence in defence which he chose to avail, however, later refused to avail it. 5. The appellant-State is aggrieved by the judgment of acquittal recorded by the learned trial Court. Mr. Ramesh Thakur, learned Assistant Advocate General has concerted to vigorously contend before this Court qua the findings of acquittal recorded by the learned trial Court, being not based on a proper appreciation of evidence on record, rather, theirs being sequelled by gross mis-appreciation of material on record. Hence, he contends qua findings of acquittal being reversed by this Court, in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 6. On the other hand, Mr. Naveen K Bhardwaj, learned counsel appearing for the respondent, has, with considerable force and vigour, contended that the findings of acquittal, recorded by the learned Court below, are based on a mature and balanced appreciation of evidence on record hence they do not necessitate interference, rather merit vindication. 7. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record. 8. 7. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record. 8. Recovery of heroin Ext.P-5 weighing 20 grams was effected under memo Ex. PA from a poly bag Ext.P-2 held by the accused in his hand. Even though the prosecution witnesses have deposed in tandem and in harmony qua each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and recovery till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcels sent to it for analysis, portraying proof of unbroken and unsevered links, in the entire chain of the circumstances, hence it stands argued that given the prosecution case hence standing established, it would be legally unwise for this Court to acquit the accused. 9. Besides when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility for sustaining thereupon findings of conviction recorded against the accused by the learned trial Court. Apparently, proof of the prosecution case is endeavored to be sustained on the strength of the unblemished testimonies of police witnesses. A close and studied perusal of the deposition of the police witnesses underscores the factum of theirs having neither given a version qua the factum of recovery of contraband from the exclusive and conscious possession of the accused inconsistent with the manner thereof as recited in the F.I.R. Ext. PO for begetting a conclusion of hence their testimonies comprised in their respective examinations in chief being ridden with a vice of inter se contradictions vis-à-vis their testimonies comprised in their respective cross-examinations, rather lack of inconsistencies aforesaid render their respective testimonies on oath to be both unimproved as well as unblemished for hence implicit reliance being placed thereupon, nor when their depositions are afflicted with any vice of intra se contradictions rather when they have deposed qua the manner of recovery of heroin from the alleged conscious and exclusive possession of the accused bereft of any disharmony or inconsistency gives leverage to an inference of hence the prosecution succeeding in sustaining its charge against the accused of heroin Ex. P-5 weighing 20 grams having stood recovered under memo Ext.PA from his conscious and exclusive possession while his carrying it in a poly bag Ex. P-2 held by him in his hand. 10. However, even though the testimonies of the official witnesses who have hence proven the factum of recovery of heroin Ext.P.5 under memo Ex.PA from the alleged conscious and exclusive possession of the accused while his carrying it in a bag Ext.P-2 held by him in his right hand stand on a solemn legal pedestal especially when their testimonies comprised in their respective examinations in chief are bereft of any taint of either inter se contradictions vis-à-vis their depositions comprised in their respective cross-examinations nor also when their testimonies stand un-ingrained with any vice of intra se contradictions necessarily then when their testimonies inspire confidence reinforcingly render their testimonies being amenable to implicit reliance being placed thereupon for concluding qua the guilt of the accused. Nonetheless before proceeding to place implicit reliance upon their testimonies, it is also imperative for this Court to gauge or discern from the available evidence on record whether independent witnesses were available in the immediate vicinity of the locality where the proceedings relating to search, seizure and recovery of contraband from the alleged conscious and exclusive possession of the accused in the manner as deposed by the official witnesses stood launched and concluded. The Investigating Officer, is not obliged to associate independent witnesses in his holding proceedings for carrying out search and recovery of contraband from the alleged conscious and exclusive possession of the accused nor also the non association of independent witnesses by the investigating officer in the proceedings relating to search and recovery of contraband from the alleged conscious and exclusive possession of the accused would oust or discount the probative worth of the testimonies of the official witnesses. However, when independent witnesses despite proven evidence of theirs being available in close proximity to the location where the proceedings relating to search and recovery of contraband from the conscious and exclusive possession of the accused stood launched or were concluded, stand not associated, such non association of independent witnesses by the Investigating Officer despite their proven availability would nurse an inference of their non association in the apposite proceedings by the Investigating Officer being both deliberate or intentional. Concomitantly also it would give succor to an inference of the Investigating Officer having omitted to join independent witnesses despite their availability in the vicinity of the location where the proceedings relating to search and recovery of contraband from the conscious and exclusive possession of the accused were launched or concluded, as he intended to smother the truth qua the genesis of the prosecution version. The genesis of the prosecution version would gain credence with this Court only when it is free from a taint of it being reared by a partisan or a slanted investigation having stood conducted by the investigating officer. The investigation carried out by the Investigating Officer would garner an element of slanted-ness or distortion when the investigating officer despite availability of independent witnesses in proximity to the site of occurrence deliberately omits to join them in the proceedings relating to search and recovery of contraband from the purported exclusive and conscious possession of the accused. Consequently, a slanted or a distorted investigation by the Investigating Officer would erode the genesis of the prosecution story. Now the apt evidence for discerning the factum of availability of independent witnesses in the immediate vicinity or in close proximity to the location or the site of search and recovery of contraband from the conscious and exclusive possession of the accused besides concomitantly of an omission to join them being deliberate as well as intentional, for sprouting a further inference of hence the investigation carried out by the Investigating Officer being both slanted and tainted besides distorted whereupon no reliance can be placed by this Court, stands comprised in the testimony constituted in the cross-examination of PW-1. In the cross-examination of PW-1 there exists a palpable disclosure of shops being available in close vicinity to the bus stand where the apposite proceedings were held by the Investigating Officer. The Investigating Officer also in his deposition comprised in his cross-examination has made a disclosure therein of his having concerted to join independent witnesses at the time of his holding a formal search of the accused, yet 4-5 persons as available at the site of occurrence refused to accede to his entreaty qua theirs being joined as witnesses in the apposite proceedings. However, the refusal, if any, of 4-5 persons to the entreaty of the Investigating Officer upon them for their association in the apposite proceedings though stands ascribed by the Investigating Officer to stand sprouted from the factum of theirs disclosing to him of the accused standing not nabbed in their presence. The disclosure aforesaid existing in the testimony comprised in the cross-examination of the Investigating Officer of availability of independent witnesses at the time contemporaneous to his holding the apposite proceedings at the site of occurrence enjoined upon him to solicit their participation therein, even though he divulges in his deposition of his having made a concerted assay to associate their participation therein, nonetheless their non-participation in the apposite proceedings though stands ascribed by him to stand grooved in the factum of theirs disclosing to him of theirs having not witnessed the nabbing of the accused by the Investigating Officer as such precluding them to join as witnesses to the apposite proceedings, nonetheless the said reason as stand ascribed by the Investigating Officer for theirs not acceding to his entreaty made upon them for theirs being joined as witnesses in the apposite proceedings perse appears to be specious, especially when the aforesaid refusal meted by the independent witnesses to the entreaty made upon them by the Investigating Officer for their participation as witnesses in the apposite proceedings stands un-reflected in any memo displaying the factum aforesaid. The non-reflection of the aforesaid fact in any apposite memo prepared qua it by the Investigating Officer or it remaining un-enunciated in the rukka or the FIR lends redoubled vigor to an inference of the Investigating Officer having never concerted to solicit the participation of the independent witnesses though admittedly available in close proximity of the site of occurrence whereat the apposite proceedings were held and concluded. Consequently, the omission on the part of the Investigating Officer to associate independent witnesses in the apposite proceedings held by him at the site of occurrence is obviously construable to be both intentional and deliberate for camouflaging the truth qua the occurrence. Furthermore, the inference which is available to be drawn by this Court is of the Investigating Officer having carried out a slanted besides a contorted as well as a contrived investigation whereupon no reliance can be placed by this Court. Furthermore, the inference which is available to be drawn by this Court is of the Investigating Officer having carried out a slanted besides a contorted as well as a contrived investigation whereupon no reliance can be placed by this Court. In sequel, the genesis of the prosecution version founded upon a skewed, faulty and partisan investigation cannot be lent credence by this Court. 11. Furthermore, the Investigating Officer as emanable from a reading of his deposition comprised in his cross-examination had undertaken to hold a formal search of the accused, nonetheless preceding the preparation of memo Ex. PA whereunder heroin Ext.P.5 stood recovered from Poly bag Ext.P.2, his holding a formal search of the accused enjoined upon him to revere the mandate of section 50 of the Act enjoining upon him to preceding his holding a personal search of the accused elicit the consent of the accused under a memo prepared in regard thereto with a disclosure therein to the accused of his having a legal right to be searched before a Gazetted officer or a Magistrate which options in case forgone by the accused in favour of the Investigating Officer would hence validate the holding of a personal search of the accused by him. However, a scrutiny of the record omits to divulge the preeminent fact of the Investigating Officer preceding his holding a search of the accused his having prepared a consent memo with a communication therein to the accused of the latter having a legal right to be searched before a Gazetted Officer or a Magistrate, whereupon the accused consented to the Investigating Officer holding his personal search for hence empowering the investigating Officer to hold a valid/legal search of the accused. The non-disclosure by evidence existing on record of any consent memo having stood prepared by the Investigating Officer preceding his holding a personal search of the accused with a communication therein of the aforesaid options to the latter, which standing waived by him in favour of the Investigating Officer, would render validated his personal search by the Investigating Officer whereas it being amiss begets a natural deduction of the Investigating Officer holding an unwarranted besides an unauthorized personal search of the accused. In sequel with the personal search of the accused suffering legal emasculation besides invalidation for infringement for reasons aforestated of the mandatory statutory provisions of section 50 of the Act, an apt inference which germinates therefrom is of the Investigating Officer hence having on his holding a personal search of the accused thereupon recovered Heroin Ext.P.5 which he took to plant it in bag Ext.P-2 carried by the accused in his hand. As a corollary, the ensuing inference which flows therefrom is of the entire prosecution version of heroin Ext.P-5 purportedly recovered from the conscious and exclusive possession of the accused while his carrying it in a bag Ext.P-2 stands capsized. 12. Be that as it may, it was also incumbent upon the prosecution to fortifyingly establish the factum probandum in as much as the case property produced before the trial Court being linkable to its recovery standing effectuation from the alleged conscious and exclusive possession of the accused in the manner espoused by the prosecution. The germane besides apt material for forming a conclusion qua the case property as produced in Court being linkable to the apposite stage of its recovery from the alleged conscious and exclusive possession of the accused in the manner propagated by the prosecution, stood embedded in the apposite descriptive entries qua it, recorded in the Malkhana register of the police station concerned. Imperatively at the stage contemporaneous to its production in Court by the learned PP for its being shown to the PWs (a) the former was enjoined to produce in Court either the abstract of the malkhana register personificatory of narrations or descriptions borne thereon being compatible or congruous to the one borne on seizure memo as shown to the prosecution witnesses (b) or he was obliged to elicit from the PWs to whom the case property stood shown in Court by him communications portraying the factum of it being carried by them on its being handed over to them by an authorized official after its retrieval by the latter from the Malkhana concerned whereupon it stood handed over by them to the learned PP for facilitating on its production by him in Court emanation of apposite elicitations from them unveiling the factum of it being the case property as attributed by the prosecution to the accused (c) even in the face of the aforesaid omission the learned PP at the time of production of case property Ex.P-5 in Court, for its being shown to the PWs for theirs deposing qua it being the very same property as was recovered from the alleged conscious and exclusive possession of the accused in the manner as propagated by the prosecution to yet gain muscle was obliged to on its production in Court by him besides prior to its being shown to the PWs communicate before it the factum of his having received it from an empowered official after its retrieval by the latter from the Malkhana concerned. 13. 13. However, a close and circumspect reading of the testimonies of PW-1 and PW-7 to whom the case property on its production in Court by the learned PP was shown omits to unfold (a) the factum of either at the stage contemporaneous to its production in Court by the learned PP for its being shown to the PWs aforesaid he divulged to the trial Court the factum of his having received it from an authorized officer on its retrieval by the latter from the Malkhana concerned (b) nor is there any emanation in the deposition of both PWs aforesaid of theirs having received it from an authorized official on it retrieval by the latter from the malkhana concerned, (c) besides there is no communication by both in their recorded depositions on oath of theirs carrying with them at the time of recording their depositions in court during course whereof the learned PP showed them case property, the relevant abstract of the malkhana register wherefrom compatibility intra-se descriptions or narrations borne thereon on its comparison with the abstract of the malkhana register could stand either disinterred or fathomed, for as a corollary rendering a conclusion of the case property as produced in the Court being the one as stood recovered from the conscious and exclusive possession of the accused. 14. The summom bonum of the above discussion is of the omissions aforesaid countervailing the propagation of the prosecution of case property produced in Court by the learned PP for its being shown to PWs being relatable to the contraband recovered from the alleged conscious and exclusive possession of the accused under memo Ex. PA. The crux of the above discussion is of the prosecution having not adduced cogent and emphatic evidence in proving the guilt of the accused. The appreciation of the evidence as done by the learned trial Court does not suffer from any infirmity as well as perversity. Consequently, reinforcingly, it can be formidably concluded, that, the findings of the learned trial Court do not merit interference. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the learned trial Court merit inference. 15. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed, and, the judgment of the learned trial Court is maintained and affirmed. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the learned trial Court merit inference. 15. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed, and, the judgment of the learned trial Court is maintained and affirmed. Record of the learned trial Court be sent back forthwith.